October 11, 2007

Copyright threats in C&D letters

Here is a link to an account of a cease and desist letter written by Donald Morris of a firm called Dozier Internet Law. The letter complains that a website defamed Dozier's client, DirectBuyCd. The letter concludes by asserting copyright in its contents and claiming that republication would subject the recipient to further causes of action. (Public Citizen's response is at the bottom of the page, and here is the Dozier firm's reply.)

The copyright threat is not incoherent, but neither is realistic. William Patry thinks it is misuse, which is a defense to infringement. I agree, and I believe reproducing the letter is fair use, along the lines of the 9th Circuit's conclusion that Jerry Falwell's reproduction of Larry Flynt's parody of him was fair use. (796 F.2d at 1156).

I do not know how often C&D letters assert such a threat. (Click here for a threat letter including a similar notice, sent to "The Smoking Gun" regarding its exposure of James Frey.) But I agree that the practice is contrary to the purpose of copyright law, and in some cases might deter recipients from shedding light on C&D letters that go too far. Such letters may disrupt legitimate free expression, so they should be subject to scrutiny. That means the practice of asserting copyright to keep such letters hidden should be stopped. The question is how.

I don't think current rules prohibit this tactic.

One comment on the Patry blog suggests the letter violates MR 4.1. But either the firm or the client has rights
in the letter at fixation (my guess is that it is not a work for hire so the firm has the rights). To allude to a claim asserting those
rights is not to make a false statement; even if it were, it
would be one of law, which is typically not actionable and is a very risky theory for discipline. Rules
governing the filing of frivolous claims seem not to extend to such
pre-filing letters, which instead might fall within the "litigation privilege"
established by rules such as California's Civil Code 47(b). Rules governing impermissible threats, such as Cal. R. Prof. Conduct 5-100, don't fit very well either.

Nevertheless, the public and the bar have an interest in monitoring such cease and desist letters to ensure that they do not wrongly limit the exchange of ideas and opinions. The recipient of this letter knew enough about the law to obtain assistance, but other recipients may not be so savvy. Courts have an interest as well; Judge Kozinski should know how his opinion inFair Housing Council of San Fernando Valley v. Roommates.com, LLC, is being used.

There is a case here for a disciplinary rule prohibiting threats aimed at reproduction of such letters, a prohibition that should be carefully tailored not to chill the substance of the letters. Here, as a first cut, is some proposed language; I am inclined to add it to MR 4.3, which already addresses advice to unrepresented parties:

"In dealing on behalf of a client with a person who is not represented by counsel a lawyer shall not . . . . (b) explicitly or implicitly threaten the recipient of any communication from the lawyer with legal action based on the reproduction, performance, or display of that communication."

Reproduction and display should be self-explanatory; I include performance to pick up voice mails, though that probably is not vital. No doubt this can be improved, but it may be useful as a starting point.

Comments

Copyright threats in C&D letters

Here is a link to an account of a cease and desist letter written by Donald Morris of a firm called Dozier Internet Law. The letter complains that a website defamed Dozier's client, DirectBuyCd. The letter concludes by asserting copyright in its contents and claiming that republication would subject the recipient to further causes of action. (Public Citizen's response is at the bottom of the page, and here is the Dozier firm's reply.)

The copyright threat is not incoherent, but neither is realistic. William Patry thinks it is misuse, which is a defense to infringement. I agree, and I believe reproducing the letter is fair use, along the lines of the 9th Circuit's conclusion that Jerry Falwell's reproduction of Larry Flynt's parody of him was fair use. (796 F.2d at 1156).

I do not know how often C&D letters assert such a threat. (Click here for a threat letter including a similar notice, sent to "The Smoking Gun" regarding its exposure of James Frey.) But I agree that the practice is contrary to the purpose of copyright law, and in some cases might deter recipients from shedding light on C&D letters that go too far. Such letters may disrupt legitimate free expression, so they should be subject to scrutiny. That means the practice of asserting copyright to keep such letters hidden should be stopped. The question is how.